Boral Resources (SA) Ltd v Byrnecut Mining Pty Ltd - [2001] WASCA 408

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: BORAL RESOURCES (SA) LTD -v- BYRNECUT MINING PTY LTD [2001] WASCA 408

CORAM: MALCOLM CJ
WALLWORK J
OLSSON AUJ

HEARD: 7 NOVEMBER 2001

DELIVERED : 13 DECEMBER 2001

FILE NO/S: FUL 64 of 2001

BETWEEN: BORAL RESOURCES (SA) LTD
Appellant
AND
BYRNECUT MINING PTY LTD
Respondent

Catchwords:

Appeal from District Court - Negligence - Quantum of damages - Apportionment of fault - Turns on own facts

Legislation:

Workers' Compensation & Rehabilitation Act 1981

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S Walsh QC & Mr P P McCann
Respondent: Ms N Johnson QC & Mr A J Power

Solicitors:

Appellant: Phillips Fox
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995
Kondis v State Transport Authority (1984) 154 CLR 672
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272

Case(s) also cited:

Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141
Devries v Australian National Railways Commission (1993) 177 CLR 472
Rosenberg v Percival (2001) 75 ALJR 734
Stevens v Brodribb Sawmilling Co Ltd (1986) 160 CLR 16
Taylor Woodrow Homes Builders Pty Ltd v Chitarra, unreported; FCt SCt of WA; Library No 940739; 30 December 1994
Vinidex Tubemakers Pty Ltd v Thiess Contractors Pty Ltd [2000] NSWCA 67
Warren v Coombes (1979) 142 CLR 531

MALCOLM CJ: In my opinion this appeal should be allowed, the apportionment made by the learned trial Judge set aside and there should be substituted an apportionment of 50 per cent against each party. I have reached that conclusion for the reasons to be published by Olsson AUJ with which I am in entire agreement.
WALLWORK J: I agree with the reasons for judgment of Olsson AUJ and with his Honour's conclusions.
There is nothing I wish to add.
OLSSON AUJ: This is an appeal against the judgment of a District Court Judge, whereby he found both a defendant ("Byrnecut") and a third party ("Boral") in breach of their respective duties of care to a plaintiff. He apportioned liability as between them for damages awarded to the plaintiff ("Skinner") as to 30 per cent against Byrnecut and 70 per cent against Boral. Boral complains that such an apportionment constituted an erroneous exercise of discretion, and that a much greater degree of contribution should have been ordered against Byrnecut.
Skinner had instituted proceedings against Byrnecut claiming damages for serious personal injuries sustained by him as a result of an accident which occurred at a mine site near Fitzroy Crossing on 5 July 1998. Byrnecut originally denied that the accident was due to any negligence on its part. It joined Boral as a third party, asserting that the accident had been due to its negligence. It sought indemnification, or, alternately, contribution from Boral to the full extent of Skinner's claim.
In the event, Byrnecut and Boral each ultimately conceded that Skinner had made out a case in negligence against them. The quantum of damages was agreed in the sum of $1.6 million, exclusive of payments already received pursuant to the Workers' Compensation & Rehabilitation Act 1981. The sole issue which fell for decision by the learned trial Judge was how the burden of this liability for damages ought to be borne as between Byrnecut and Boral.
The learned trial Judge published lengthy reasons in which he carefully analysed the evidence of the various witnesses and made detailed findings of fact. Those findings are not now under challenge and it is unnecessary to retraverse the basis on which he came to them. The real issues focus on the conclusions of law to which they ought, properly, to lead.

I therefore direct initial attention to the key features of the findings.
Byrnecut, Boral and a company referred to as "Cockatoo" were each contractors to Western Metals, the operator of the mine site.
Byrnecut was responsible for the mining of zinc sulphide ore from the underground face of the mine by blasting, bogging and transferring it to the surface. The ore was conveyed to the surface in large ore trucks and then dumped in rows in an area known as a ROM pad.
That area was, in reality, a stockpile having the configuration of an elevated plateau, some four or five metres high, formed up with material extracted from the mine. It normally had a working face running down to the area below at an angle of approximately 45 degrees, from which ore was taken for crushing.
Cockatoo operated bulldozers on the plateau area, once ore had been dumped on it. Its role was to push the won ore over the crest of the ROM pad and down the working face, so that employees of Boral could load it into front‑end loaders from the base and then convey it to the crusher.
It was standard practice for the bulldozer operators to create and maintain a "windrow" of material about two to two and a half metres wide and one to one and a half metres high along or near the crest of the working face, but one to two metres back from it. This was done as a safety measure to indicate to drivers of ore trucks coming onto the plateau where the edge of the ROM pad was. This was particularly important in relation to night dumping operations.
The activities at the mine site, at the time of the relevant accident, were being conducted on a more or less continuous basis ‑ employees working 12 hour shifts. Efficiency, productivity and the method of pay by results demanded a fairly constant day and night cycle of events, with plant operators engaged in the various activities working under some pressure.
The plaintiff, Skinner, was an experienced truck driver employed by Byrnecut. At the time of the accident he was on night shift, driving a 30‑tonne ore truck, which weighed 68 tonnes when fully loaded. He commenced work at about 6.15 pm.
In accordance with instructions received from his shift boss, he obtained his first load from the ore face and drove on to the ROM pad. Most, if not all, of the ore which had previously been dumped on it had been bulldozed over the crest by Cockatoo employees by the end of the previous shift.
On some previous occasions the ROM pad had been illuminated by a lighting plant with halogen lamps facing toward the windrow, but none was present on the night in question. It was, however, quite light, with the moon and stars bright enough to cast shadows.
The more or less standard technique with a clear pad area was to commence dumping loads in a row close to the windrow and then continue creating successive rows progressively back, away from the edge of the ROM pad.
When Skinner emerged in his truck from the mine onto the ROM pad he noted that one load had already been dumped in the corner of the pad on the left side near the windrow. He drove forward and then reversed back to dump his load alongside of it. He had spotlights on the back of his truck which illuminated the immediate dumping site.
As Skinner's truck got to the point about three to five metres from the tipping face, the crest in that area subsided down the working face. The truck rolled over backwards, ending upside down on the lower level. Skinner sustained very serious physical injury.
At the time of the accident the windrow had appeared to him to be intact and there was nothing overtly abnormal to indicate to him that the area was unsafe.
Unbeknown to Skinner, during the previous shift, an employee of Boral (one Greatorex) had been operating a front‑end loader on the lower level directly below the accident site. He had been directed by his supervisor to commence reclaiming ore from that location and convey it to the crusher.
One extraordinary feature of the evidence, as accepted by the learned trial Judge, was that, not only was Greatorex quite inexperienced in this type of activity, but also, no‑one had taught him the correct method of digging the face of the ROM pad. He was simply left to his own devices and given no relevant training at all.
When he commenced his task he observed one Davey, an employee of Cockatoo (who was in fact known to him), pushing material at the top of the ROM pad. He claimed that he simply waved to Davey ‑ but had no further interaction. He was aware that dumping would – or, at least, could well - resume on top of the ROM pad during the night shift.
Greatorex gave evidence at trial. He claimed that the windrow was to be seen from where he was working and had been intact, both before and after the concluded operations. The learned trial Judge did not regard this witness as reliable and considered that he went out of his way to ensure that blame for the accident would not be attributed to him. He specifically found that, as was asserted by Davey, the latter had been concerned at the activities of Greatorex during the day shift and had actually approached and told him that he ought not to be digging in that area for safety reasons ‑ and should be digging in another location which Davey indicated.
The learned trial Judge concluded that Greatorex not only did not head this advice, but also did not, as he claimed he did, go up to the top of the ROM pad at the conclusion of his shift and check the safety of the face and the windrow in the area where he had been digging.
Greatorex conceded before the learned trial Judge that he was concerned that his digging below might have created a dangerous situation at the top and that he realized at the time that the edge of the ROM pad was unstable. Notwithstanding that he did not report his concern to anyone at the end of the shift.
The evidence accepted by the learned trial Judge established that inspections of the accident site immediately after the incident revealed that, due to the excavation activities of Greatorex, and other plant operators, the normal 45 degree face of the stockpile had been removed. The faces of the ROM pad on either side of where the truck had come down were noted to be almost vertical, to the point that dumping ore in the area above was plainly unsafe. In effect, the crest of the ROM pad had been undercut.
A good deal of expert evidence was led before the learned trial Judge as to what measures were required to constitute safe practice in activities such as those conducted at the mine site.
The learned trial Judge quite rightly concluded that the operations of both Byrnecut and Boral fell far short of safe work practice in important respects.
In addressing the particulars of negligence asserted against Byrnecut, the learned trial Judge, for reasons which appear to be well founded on the evidence, rejected complaints going to the size, shape and location of the windrow; a failure to provide electric lighting on the ROM pad; a failure to install reversing mirrors on the ore trucks; a failure to provide a 'spotter' on the ground to assist in guiding the truck; a failure to provide adequate instruction and training to Skinner and several other alleged deficiencies. There is no point in retraversing what the learned trial Judge said about these. They were, with respect, conclusions of common sense.
What the learned trial Judge did conclude was that Byrnecut breached its duty of care to the plaintiff as an employee, in two major respects namely:
(1)it had failed to implement and enforce any proper system of supervision of Skinner's work; and
(2)it had failed to warn Skinner of the location of the so‑called "live face" of the ROM pad stockpile on which the third party had been working.
The learned trial Judge pointed out that Byrnecut had failed to provide an adequate system of communication and instruction to its employees as to the state of work from time to time on the ROM pad. Moreover, he said, had there been in place a system by which, at the beginning of each shift, the face was inspected and drivers were informed of the state of the face and any dangers in it, the accident may have been avoided.
His conclusion was that Boral had breached its duty to Skinner in various respects, namely:
(1)Its employee had been given insufficient training and little, if any, supervision.
(2)Because of that deficiency Greatorex' method of loading from the face of the ROM pad was flawed ‑ a situation which would have become apparent on proper supervision.
(3)Greatorex essentially ignored Davey's warning, continued what he was doing knowing that it rendered projected truck operations on the pad above where he had been working dangerous and, having, after a somewhat cursory inspection, become concerned during his shift that the face could be dangerous, did further work on it in a deficient manner.
(4)Having done so Greatorex left the face in a dangerous condition and failed to warn anyone of that situation, not even his own employer.
(5)Boral had no system in existence to either check the work of its employees or to communicate the existence of a dangerous condition of any face to drivers on the ROM pad.
It was the ultimate conclusion of the learned trial Judge that what he described as "the primary cause" of the dangerous condition of the site was the failure of Boral to properly load from the face, thereby leaving it in an unsafe condition. He emphasised that Boral was in the best position to know of the dangerous condition of the face and failed to give appropriate warning to other users of the site. This being so, he considered that Boral "should bear a high proportion of the blame for the accident".
The validity of his conclusions falls to be tested against what fell from Malcolm CJ in Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995. The learned Chief Justice there pointed out that the making of an apportionment as between two parties of their respective shares and the responsibility for damage involves a comparison both of culpability (namely, the departure from the standard of care of the reasonable person) and also of the relative importance of the acts of the parties, in causing the damage. In speaking of the joint judgment in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494, he drew attention to the dictum of the High Court in that case to the effect that the whole conduct of each negligent party in relation to the circumstances of an accident must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case. The circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in actually causing the damage could be of little, if any, importance.
To that I would merely wish to add that, as the majority in Podrebersek went on to comment:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'…
Such a finding, if made by a judge, is not lightly reviewed."
Indeed, as Pidgeon J said in Union International (WA) Pty Ltd v Mazurak [1999] WASCA 272; par 36, much latitude must be allowed to the original tribunal in arriving at a judgment on an issue such as this. The cases will be rare in which the apportionment made can successfully be challenged.
Is this such a case?
As I understood the argument advanced by Mr Walsh QC, on behalf of Boral, it is said that, whilst there can be no doubt that the conduct of Greatorex was, in practical terms, the immediate cause of Skinner's accident, the decision of the learned trial Judge failed to attach adequate weight to the significance of the clear and substantial failure of Byrnecut to discharge its non‑delegable duty to take reasonable steps to provide a safe place of work; and to erect and enforce a safe system of work for its ore truck drivers (Kondis v State Transport Authority (1984) 154 CLR 672 at 680 – 681).
He contended that Byrnecut had singularly failed to discharge its primary obligation to ensure that the workplace was safe for its employees. In the context of what, on the evidence, was an inherently dangerous activity conducted at night, without lighting and in an environment requiring speed of activity, there was, in fact, no real safety system at all. The learned trial Judge had not, it was said, attached appropriate weight to that factor and the situation that, had a proper safety system been erected, the accident would have been avoided.
Mr Walsh QC argued that, with three contractors on site, Byrnecut was, in any event, best placed to coordinate the relevant activity. He pointed to the finding of the learned trial Judge that Boral had not been included in the daily site meetings between senior officers of the mine operator and Byrnecut; and that there was no process of coordination to ensure that dumping did not occur at or near an active reclamation face - which all witnesses conceded was well recognised as being dangerous practice.
Great emphasis was placed on the working arrangements which were implemented after the accident whereby ‑
•Boral was invited to shift meetings.
•Arrangements were made to ensure that dumping and reclaiming always took place in separate areas, with drum markers being positioned to indicate areas being reclaimed below.
•New lights were installed.
•Windrows were constructed further into the ROM pad, to ensure that they were not undermined by reclamation activities.
•Measures were developed to restrict access to live pad areas.
•Shift supervisors were required to inspect the top and bottom of the ROM pad at the commencement and conclusion of each shift.
It was said that these were all obvious, commonsense measures which could and should have been implemented prior to the accident, as part and parcel of any basic, safe system of work. Byrnecut's failure to do so constituted a major element of culpability and causation which was not adequately recognised by the learned trial Judge.
Mr Walsh QC summarised his submissions by saying that the actions of Greatorex were a danger to no‑one, as long as this well established rule was obeyed, namely that dumping should not occur at a live face. Too much weight was placed on the fact that Boral was said to have created the danger, when there should never have been a danger to any driver in the first place, had there been a proper system. He also sought to criticise the weight given to what was said to have been the warning given by Davey to Greatorex.
The respondent's response to these suggestions was that, they ignored what was said to be the "causal potency" of the acts of Greatorex, in his negligent undermining of the windrow area, given that it appeared that the windrows had adequately been constructed in the first place. Mrs Johnson QC, for Byrnecut, sought to argue that, allowing that a proper system of inspection should have been in place, it does not follow that such a system would, necessarily, have revealed the existence of the undercut face at the time of the accident. At best, it may have revealed the existence of dangers and may have avoided the accident. The real culpability arose from the positive creation of a dangerous condition by Greatorex, (due to his ineptitude and lack of training, coupled with an absence of proper supervision of his activities) and then leaving the live face in an unsafe condition without informing anyone.
Mrs Johnson QC further stressed that it had to be kept firmly in mind that ultimate responsibility and power for co‑ordination of activity on the mine site rested with Western Metals and not Byrnecut. She argued that it was inappropriate to seek to saddle the latter with an obligation which did not properly attach to it.

On a fair reading of the reasons of the learned trial Judge, I consider that, with respect, his ultimate conclusion was clearly influenced by an undue pre‑occupation with the immediate cause of the accident, rather than an application of the test propounded in Podrebersek.
That test requires a comparison and balancing of the culpability of the relevant parties, in the sense of their responsibility for what occurred due to the respective degrees of departure from the applicable duty of care, as well as the relative importance of any acts of causation. I am not satisfied that such a balancing exercise was in fact carried out.
In this respect there were several facets which attracted particular consideration. Salient amongst them were –
(a)Whilst it is true that Western Metals had the responsibility for overall co‑ordination of the activities of its contractors, so as to ensure a generally safe operational environment, that by no means absolved either Byrnecut or, for that matter, Boral from their respective non‑delegable duties of care to their own employees, or their respective wider duties of care to others to whom they owed such duties.
(b)It must have been abundantly obvious to both of those contractors that Western Metals had not established any effective system of co‑ordination at all, designed to ensure a safe system of work. Quite apart from the fact that Boral was not included in the daily meeting with the mine foreman, it seems obvious on the evidence (AB 125 – 126) and the findings of the learned trial Judge that those meetings were essentially designed to communicate operational instructions. The evidence did not indicate that they were pitched at safety co‑ordination at all.
(c)There was an undoubted positive duty on both Boral and Byrnecut, within the broader site operational environment, to establish a safe system of work for their respective employees, in relation to the activities of those employees. As a matter of plain common sense, critical features of such a system needed to include:
•establishing an effective system of co‑ordination and communication with each other to ensure that work activities did not take place in unsafe environments and, in particular, that dumping activities were not conducted in live face areas;
•erecting a proper system of regular inspections of the ROM pad and working face to identify what areas were and were not safe for projected operational activities;
•developing an effective system of marking unsafe areas and ensuring that plant operators were adequately briefed both as to where they were to go and also where they were not to go; and
•implementing an adequate process of supervision to ensure that an adequate safety system was in fact enforced and carried into effect.
The regrettable fact is that it seems that neither Boral nor Byrnecut addressed such issues. There was some faint suggestion that they were, or at least Byrnecut was, entitled to rely on the fact that the mine foreman was said to have carried out daily site inspections. However, it is by no means clear that these were for other than broad operational decision‑making purposes. In any event, it must have been quite apparent to all concerned that such inspections were not providing a basis for developing an effective safety mechanism, the more so as Boral was never included in the direct information dissemination loop.
I am driven to the conclusion that both Byrnecut and Boral were each highly culpable in relation to the dangerous situation which arose and that, in a very real sense, the causative actions of Greatorex were little more than a practical manifestation of such a situation and a direct product of it. It is unreal to divorce his actions from the broader scenario which permitted them to occur in the setting in question or, indeed, at all.
In my opinion, the apportionment made patently does not take account of that consideration and certainly does not reflect the degree of culpability which inevitably attached to Byrnecut. As Mr Walsh QC fairly contended, had Byrnecut put in place and enforced a safe system of work apropos its employee, it is difficult to perceive how the accident could have occurred. An apportionment of only 30 per cent against it fails to recognise that reality.
Whilst I recognise that due regard must be had to the important consideration of the non‑delegable duty of Byrnecut to Skinner, nevertheless, I find it difficult to draw a distinction between the respective degrees of responsibility of it and Boral in relation to the unfortunate accident which occurred. It may also be said that, had Boral initiated an adequate safe system of its work, it is most unlikely that Skinner would have been injured.
In all the circumstances I would allow the appeal, set aside the apportionment made and substitute an apportionment of 50 per cent against each party.